Collegiate athletic programs offer students the opportunity to participate in sports at a high level while earning their education, but most students’ athletic careers end at graduation. Fewer than 2% of NCAA student athletes will become professional athletes.[1] The transition holds numerous legal complications and opportunities for the many athletes wondering, “What comes next?”
NIL Rights
The changes in Name, Image, & Likeness (NIL) policies have changed the landscape of college sports.[2] Student athletes are leveraging their NIL by signing deals for their name, image, or likeness to be used in advertising. Athletes who have built up their personal brands while in college can continue to leverage their NIL for future opportunities in social media, brand or product endorsements, media appearances, or their own brands.
A legal challenge is for athletes structuring their NIL contract during college, and whether those contracts extend beyond. Athletes should be careful about structuring long-term deals that may restrict future opportunities, whether they enter professional sports or not.
A current example is Olivia Dunne, who has signed NIL deals with many famous brands during her gymnastics career. [3] Although there is no path for her to continue as an elite gymnast,[4] she is hoping to continue leveraging those partnerships, including with Sports Illustrated, after graduation.
Employment Law
One of the biggest changes in the landscape of college sports will occur if athletes are reclassified as employees of the NCAA, the conference or the university.[5] As employees, and through collective bargaining for additional benefits, students may be eligible for workers’ compensation, health insurance, disability insurance, and other benefit programs. The amateur status and the very term student athlete have been a carefully crafted legal strategy by the NCAA to avoid these benefits typically provided to employees.[6]
The NCAA currently offers an Exceptional Student-Athlete Disability Insurance Program to exceptional athletes that have the potential to be drafted in the first two rounds of their respective sport. This disability insurance is expensive for the students to take out coverage, and only pays out if it is a catastrophic, career-ending injury. The NCAA says that only around 100-120 athletes per year enroll in this policy, and it has paid out less than 6 times since 1990.[7] With 500,000 student athletes in the NCAA,[8] the result is that most student athletes who are injured are unable to currently hold the NCAA accountable for compensation for their injuries incurred while playing sports. As employees, workers compensation coverage would be required.
Entrepreneurship
Beyond NIL deals, many high-profile athletes are now using their status to start their own business ventures. Legal challenges in starting a business include business formation, intellectual property rights, and contract law. The legal structure has implications for taxation, liability, and ownership of the business.
Steph Curry has started his own media company, a golf tour for youth, and a bourbon brand, among others.[9] He also has expressed interest in owning an NBA team in the future.
Intellectual Property
Athletes can extend their branding beyond graduation. Personal names, nicknames, slogans, or logos may be eligible to receive federal trademark protection establishing nationwide rights.[10] Additionally, athletes may launch their own companies that need protection. Securing formal trademark protection can enable athletes to have better leverage in licensing negotiations and protect against unauthorized use.
Legal challenges here can include ensuring the trademark does not create confusion with other marks, registering in a timely manner, using the mark in commerce to keep it alive, and enforcing rights against others who are infringing.
Last year, Angel Reese filed a trademark application for ‘Bayou Barbie,’ her nickname while helping lead LSU to the national championship.[11] She tried to register the mark in association with clothing, but the trademark application was rejected by the examiner on the grounds that there would be a likelihood of confusion with trademarks for Barbie registered to Mattel.[12]
Summary
There are a wide variety of complex legal issues facing student athletes, especially as they graduate. In all these areas, there are opportunities for lawyers interested in sports and for student athletes. It will be a continuing challenge to keep student athletes informed about their legal rights and responsibilities as the new era evolves.
[1] https://ncaaorg.s3.amazonaws.com/compliance/recruiting/NCAA_RecruitingFactSheet.pdf
[2] https://ublawsportsforum.com/2023/11/12/ncaa-may-owe-former-collegiate-athletes-over-1-billion-in-damages/
[3] https://www.foxnews.com/sports/olivia-dunne-charting-path-after-college-nil-money-continues-pour
[4] https://www.marca.com/en/ncaa/2024/09/18/66eaf462e2704e814a8b4599.html
[5] https://ublawsportsforum.com/2024/08/28/employee-or-not-employee-that-is-the-question-the-test-for-employee-classification-and-its-impact-on-the-usc-case-before-the-the-nlrb/
[6] https://www.theguardian.com/sport/2021/sep/06/college-athletes-are-unpaid-what-if-injury-ruins-their-chance-of-turning-pro
[7] https://lawreview.unl.edu/college-sports-enter-your-own-risk-overview-ncaa-insurance-policies-available-its-student-athletes
[8] https://ncaaorg.s3.amazonaws.com/compliance/recruiting/NCAA_RecruitingFactSheet.pdf
[9] https://www.cnbc.com/2024/09/03/steph-curry-says-he-wants-to-be-an-nba-owner-in-the-future.html
[10] https://www.uspto.gov/sites/default/files/documents/student-athlete-TM-basics-flyer.pdf
[11] https://bleacherreport.com/articles/10110150-lsus-angel-reese-has-bayou-barbie-trademark-filing-denied-by-uspto
[12] U.S. Trademark Application No. 97772645